Does The Federal Twombly/Iqbal Pleading Standard Apply To Affirmative Defenses In Federal Courts?

Dave Kramer

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Our post last week discussed whether heightened federal pleading standards for stating a claim for relief apply in Kentucky state courts. Today’s post deals with the issue whether those standards apply to affirmative defenses in federal court.
There is a split among the federal district courts as to whether the plausibility standard established by the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), applies to affirmative defenses. To date, the Supreme Court has not decided the issue, nor has any of the federal circuit courts.
It appears that a minority of federal district courts have applied the heightened pleading standard of Twombly and Iqbal to affirmative defenses based mainly on a “goose-gander” approach, reasoning that if plaintiffs must follow the plausibility standard, then defendants should as well. See, e.g., Racick v. Dominion Law Associates, 270 F.R.D. 228 (E.D. N.C. 2010). However, a majority of district courts that have decided the issue have determined that the plausibility standard does not apply to affirmative defenses because of the clear difference in the language used in Rule 8(a) governing claims for relief as compared to Rule 8(b) and 8(c) governing defenses. See, e.g., U.S. Commodity Futures Trading Com’n v. U.S. Bank, N.A., 2014 WL 294219 (N.D. Iowa 2014).
Rule 8(a)(2), which was at issue in the Twombly and Iqbal decisions, requires that “claims for relief” contain a “short and plain statement of the claim showing that the pleader is entitled to relief” (emphasis added). On the other hand, Rule 8(b)(1)(A), which governs defenses, requires only that the defendant “state in short and plain terms its defenses to each claim asserted against it.” Rule 8(c), which covers affirmative defenses, does not require the defendant to make any “showing” that it is “entitled” to plead any affirmative defense that it asserts. See Odyssey Imaging, LLC v. Cardiology Assocs. of Johnston, LLC, 752 F. Supp. 2d 721, 725–26 (W.D. Va. 2010).
As recently as January 30, 2014, a federal district court in California found in an unpublished decision that there was no “binding authority holding that the Twombly/Iqbal standard applies to affirmative defenses.” In the absence of such authority “expanding the scope of Twombly/Iqbal,” the court found “the traditional standard of fair notice to the plaintiff is still applicable to the pleading of affirmative defenses,” and thus decided to determine the sufficiency of the defendant’s plea of an affirmative defense by “analyzing whether it gives Plaintiff fair notice of the defense.” Vogel v. OM ABS, Inc., 2014 WL 340662 (C.D.Cal. 2014).
The majority of courts in declining to apply the heightened standard to pleading defenses generally note for a variety of reasons that it is unfair to hold defendants to the same heightened standard as plaintiffs. They often note that the plaintiffs usually control when civil proceedings are initiated, and that, whereas plaintiffs may have months to research and refine their claims in their complaints, defendants usually have only 21 days under the Federal Rules to formulate their affirmative defenses. Furthermore, if a new claim becomes evident during discovery, plaintiffs may usually take advantage of liberal rules governing amendment of pleadings and amend the complaint to add the claim, but some affirmative defenses could be waived even if the defendants did not have evidence to support the defenses until the discovery process. Thus, defendants routinely plead a multitude of affirmative defenses out of an abundance of caution in the event that a basis for the defense appears during discovery. Such defenses are sometimes formally withdrawn but are more commonly reserved or simply ignored when the case proceeds. For these reasons, most courts decline to apply the plausibility standard of Twombly and Iqbal to affirmative defenses.
Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-procedure-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.